Heard v. Town of Camp Hill et al

Filing 76

ORDER: It is ORDERED that Plaintiff's 71 Motion to Preclude Defendants from offering expert testimony from a number of witnesses disclosed pursuant to FRCP 26 is GRANTED in part and DENIED in part as further set out in the order. It is f urther ORDERED as follows: 1. To the extent Judge Charles Price has relied on information that is not available to Heard or has not previously been produced in this action, on or before 11/22/2017, Defendants are ORDERED to provide a copy of that e vidence to Heard; and 2. On or before 11/22/2017, Defendants shall either (1) specifically identify the health professionals from whom they intend to elicit opinion testimony andprovide any disclosures required by Rule 26(a)(2), or (2) withdraw their expert disclosures for these witnesses. Signed by Honorable Judge Gray M. Borden on 11/17/2017. (dmn, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DOUGLAS R. HEARD,
Plaintiff,
v.
TOWN OF CAMP HILL, et al.,
Defendants.

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Case No. 16-cv-856-WKW-GMB
[WO]

ORDER
Pending before the court are Plaintiff’s Objections to the Defendants’ Expert
Witness Disclosures Pursuant to Rule 26 (Doc. 71), which seek to preclude Defendants
from offering expert testimony from a number of witnesses disclosed pursuant to Federal
Rule of Civil Procedure 26. Defendants have responded in opposition (Doc. 72), and the
District Court referred this motion to the undersigned on November 17, 2017. Doc. 75.
For the reasons set out below, Plaintiff’s motion (Doc. 71) is GRANTED in part and
DENIED in part.
I.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Douglas R. Heard claims that he was wrongfully arrested on three
occasions, and as a result he has sued the Town of Camp Hill, Alabama, along with its
mayor, Danny Evans; its chief of police, Johnny R. Potts; and a police officer working for
the Town, Kendrick Norris. Doc. 39 at 1–2.

For a more detailed discussion of Heard’s

claims and the procedural history of this case, the court refers the parties to its Order of
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August 23, 2017. See Doc. 51.
The August 23 Order addressed the same issue now before the court—whether the
parties’ expert witness disclosures comply with Rule 26(a)(2).

Then, Defendants

claimed that Heard had not satisfied Rule 26. See, e.g., Doc. 45.

The court granted

some, but not all, of the relief they requested.

Now, the shoe is on the other foot, with

Heard claiming that Defendants’ disclosures are insufficient in five ways: (1) the
disclosure for Judge Charles Price does not appropriately identify the facts or data upon
which his testimony is based; (2) the disclosure for Potts does not appropriately describe
his anticipated opinions; (3) the disclosure for Norris does not appropriately describe his
anticipated opinions; (4) the disclosure for Norris references an opinion regarding the 911
telephone system that is irrelevant to the case; and (5) the blanket disclosure of Heard’s
medical or mental health professionals is inappropriate.

Each objection is addressed

below.
II.
A.

DISCUSSION

Disclosure for Judge Price
Defendants have identified Judge Price as a retained or specially employed expert,

triggering the heightened disclosure requirements of Rule 26(a)(2)(B). Doc. 71-1 at 1.
Heard objects to the representation in Judge Price’s report that it “outlines ‘exhibits that
will be used to summarize or support’” his opinions. Doc. 71 at 1.

Instead, Heard

claims that the report “simply lists 24 items that the expert states were reviewed.

There

are no specific exhibits cited as indicated in the Defendants’ disclosures.” Doc. 71 at 2.
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Rule 26(a)(2)(B)(iii) requires expert reports to “contain any exhibits that will be
used to summarize or support [the expert’s opinions].”

Heard admits that the report

identifies 24 specific exhibits on which Judge Price bases his opinions, and at any rate the
court finds that Judge Price’s report sufficiently identifies his opinions and the
information upon which they are based. See generally Doc. 71-1.

The report does not,

however, “contain” the exhibits within the customary meaning of that word.

The

question, then, is whether Defendants’ failure to attach the exhibits to Judge Price’s
disclosure renders the disclosure insufficient.

As the court observed when it last

addressed this issue, “the expert witness discovery rules are designed to allow both sides
in a case to prepare their cases adequately and to prevent surprise.” Cooper v. Southern
Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson
Foods, Inc., 546 U.S. 454, 457–58 (2006).

There is no meaningful potential for surprise

when Defendants have identified the 24 categories of evidence upon which Judge Price
relied.

Nor is there asymmetry in the expert disclosures provided by Heard and

Defendants, as both expert disclosures described the evidence viewed by the respective
experts in lieu of attaching physical copies of these documents to the disclosures. See,
e.g., Doc. 48-1 at 2 (disclosing Heard’s treating physician’s reliance on Heard’s medical
records, which were produced in discovery but not attached to the disclosure).
Moreover, most—if not all—of the 24 categories of evidence disclosed in Judge
Price’s report appear either to be discovery materials exchanged by the parties to this case
or pleadings filed in this court. See Doc. 71-2 at 2–3 (listing, for example, eight
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deposition transcripts, the video recording of Heard’s arrest by Potts, and a number of
specific pleadings).

The court finds no prejudice to Heard if the documents Defendants

have identified are already in his attorney’s possession.

This is particularly true when

Heard’s counsel chose to employ the same procedure.

However, to the extent Judge

Price has relied on evidence that is not available to Heard or has not been previously
produced in discovery, Defendants are ORDERED to provide a copy of that evidence to
Heard no later than November 22, 2017.

Heard’s objections to Judge Price’s disclosure

are OVERRULED in all other respects.
B.

Disclosures for Potts and Norris
Next, Defendants have identified Potts and Norris as experts who are not retained

or specially employed, traveling under Rule 26(a)(2)(C)’s more relaxed standard. See
Doc. 71-1 at 2.

Heard has not contested this status.

Under Rule 26(a)(2), parties must

disclose “the identity of any witness [the party] may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A).

Thus, the

threshold issue is whether Potts and Norris will present evidence within the ambit of
Rules 702, 703, or 705.

In addition to identifying both Potts and Norris as experts in the

disclosures, Defendants state that Potts and Norris will offer opinions based on their
“training, experience, education and personal observations” about whether Potts’ actions
were “consistent with standard operating procedures and commonly accepted practices
for law enforcement officers in the State of Alabama.” Doc. 71-1 at 2.

Based on these

representations, the court concludes that both Potts and Norris qualify as experts under
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Rule 26(a)(2)(C).
Therefore, Rule 26 compels the defendants to provide “the subject matter on
which the witness is expected to present evidence . . . and a summary of the facts and
opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).
Defendants have met these requirements.

As quoted above, Defendants disclosed the

subject matter on which Potts and Norris will testify—whether the level of force
employed by Potts when he arrested Heard was appropriate and sufficient to cause injury.
Further, contrary to Heard’s assertions, Defendants have provided a summary of the facts
and opinions to which Potts and Norris will testify—that Potts applied handcuffs in a
manner consistent with commonly-accepted practices and procedures for Alabama law
enforcement officers, that the force was minimal and not excessive, and that the force
would not have caused injury. See Doc. 71-1 at 2.

Defendants also indicate that Potts

and Norris will testify that the 911 telephone system is generally used for emergencies
only, and that any additional facts to which each may testify are included in their
September 28, 2017 depositions. See Doc. 71-1 at 2.
Heard contends that Defendants were required to explain, in detail, what practices
and procedures are commonly-accepted in the law enforcement community and what
constitutes force that is minimal, not excessive, and insufficient to cause injury.

This is

not what Rule 26(a)(2) compels and is a far higher burden than what the court required of
Heard in its August 23, 2017 Order. See Fed. R. Civ. P. 26(a)(2)(C)(ii) (providing for a
“summary of the facts and opinions to which the witness is expected to testify”); Doc. 51
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at 7 (noting that Plaintiff’s disclosure indicated that a medical doctor would “provide an
opinion regarding the Plaintiff’s physical health conditions prior to and since the incident
made the basis of this lawsuit,” without defining what that opinion would be).

Far from

creating surprise, the disclosures of Potts and Norris explain that both will testify that,
according to the policies and procedures applicable to Alabama police officers, the force
employed by Potts was minimal, not excessive, and not sufficient to cause injury.
Defendants have provided the subject matter of Potts and Norris’s testimony and a
summary of the facts and opinions to which each will testify.

Accordingly, the court

concludes that Defendants have satisfied Rule 26(a)(2)’s disclosure requirements with
regard to Potts and Norris, and Heard’s objections to these disclosures are therefore
OVERRULED.
C.

Testimony Regarding the 911 Telephone System
Heard has also lodged a relevancy objection to testimony that the 911 emergency

telephone system is used for “emergencies where health, safety or property is in
immediate jeopardy,” and not for “non-emergency situations.”1 Doc. 71-1 at 2.

Rule 26

explicitly provides that information “need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1).

Instead, the rule permits the discovery of “any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1).

Rule 26 relevancy is “construed broadly to encompass any matter that bears

on, or that reasonably could lead to other matter that could bear on, any issue that is or
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While Heard mentions only Norris in this portion of this brief, Defendants’ disclosures reveal that Potts
also intends to testify on this subject. See Doc. 71-1 at 2.

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may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Of course, given the broad scope of discovery under Rule 26, it is Heard’s burden
to demonstrate that “it is clear that the information sought has no possible bearing on the
claims and defenses of the parties or otherwise on the subject matter of the action.”
Rosenbaum v. Becker & Poliakoff, P.A., 708 F. Supp. 2d 1304, 1306 (S.D. Fla. 2010)
(citation and internal quotation marks omitted).

He has not done so.

Heard might have

a relevancy objection to the introduction at trial of evidence relating to the 911 system,
but at this stage of the litigation he has not offered any basis for prohibiting discovery
into this subject.
D.

Accordingly, this objection is OVERRULED.

Testimony of Medical or Mental Health Professionals
Finally, Heard objects to the disclosure of “[a]ny medical or mental health

professionals providing treatment to Plaintiff Douglas Heard either before or after the
incidents described in Plaintiff’s Second Amended Complaint.” Doc. 71-1 at 2.

The

court agrees that such a blanket disclosure does not comply with the basic obligations set
forth in Rule 26(a)(2) and detailed above. Therefore, the court SUSTAINS Heard’s
objections with respect to this portion of the disclosures.

Defendants are ORDERED

either to (1) specifically identify the health professionals from whom they intend to elicit
opinion testimony and provide any disclosures required by Rule 26(a)(2), or (2) withdraw
their expert disclosures for these witnesses.
III.

CONCLUSION

For these reasons, it is ORDERED that Plaintiff’s motion (Doc. 71) is GRANTED
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in part and DENIED in part. It is further ORDERED as follows:
1.

To the extent Judge Charles Price has relied on information that is not

available to Heard or has not previously been produced in this action, on or before
November 22, 2017, Defendants are ORDERED to provide a copy of that evidence to
Heard; and
2.

On or before November 22, 2017, Defendants shall either (1) specifically

identify the health professionals from whom they intend to elicit opinion testimony and
provide any disclosures required by Rule 26(a)(2), or (2) withdraw their expert
disclosures for these witnesses.
DONE this 17th day of November, 2017.

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